Key Benefits:
(M. KIRIL Z.)
The Constitutional Council was seized on 18 January 2012 by the Court of Cassation (Criminal Division, Judgments 261 and 262 of 18 January 2012), under the conditions laid down in Article 61-1 of the Constitution, of two questions Priority constitutionality posed by Mr. Kiril Z., relating, respectively, to seventh paragraph of Article 116-1 of the Code Criminal procedure and the seventh paragraph of Article 64 (1) The same code.
The Constitutional Council,
In view of the Constitution;
Seen underOrder No. 58-1067 of 7 November 1958 as amended by the Organic Law on the Council Constitutional;
Given the Penal Code ;
Given the Criminal Procedure Code ;
Seen Law n ° 2007-291 of 5 March 2007 aimed at strengthening the balance of criminal procedure;
Having regard to the Rules of Procedure of 4 February 2010 on the procedure followed before the Council Constitutional for priority questions of constitutionality;
In view of the observations made for the applicant by Mr. Loïc Auffret, lawyer at the Bar of Lyon, registered on 8, 9 and 24 February 2012;
In view of the observations made by The Prime Minister, registered on 9 February 2012;
Seen the coins Filed and attached to the file;
Me Auffret, for the applicant, and Mr. Xavier Pottier, appointed by the Prime Minister, having been heard at the public hearing on March 27, 2012;
The rapporteur was heard;
1. Considering that these two priority issues of constitutionality need to be addressed in a single decision;
2. Considering that at terms of the seventh paragraph of article 64-1 of the Criminal Procedure Code : " This Article shall not apply where the person is kept for a crime referred to in Article 706-73 of this Code or provided for in Titles I and II of Book IV of the Penal Code, unless the Prosecutor of the Republic orders Registration " ; that according to the seventh paragraph of Article 116-1 of the Code: This Article shall not apply where the information relates to a crime referred to in Article 706-73 of this Code or provided for in Titles I and II of Book IV of the Penal Code, unless the investigating judge decides to proceed with the registration " ;
3. Considering that, according to the complainant, by making an exception to the principle of the audiovisual recording of interrogations in criminal matters when conducted in connection with investigations or instructions relating to crimes under the These provisions violate the principle of equality and respect for the rights of the defence;
4. Considering, first, that under Article 6 of the 1789 Declaration of the Rights of Man and the Citizen, the Law is " The same for all, either to protect or to punish " ; Article 7 states: " No man shall be charged, arrested or detained except in cases determined by law, and in the manner prescribed by law ... " ; Article 9 states: " Every man being presumed innocent until he has been found guilty, if it is deemed necessary to arrest him, any rigor that would not be necessary to ensure his person must be severely punished by law " Article 16 provides as follows: Any society in which the guarantee of rights is not guaranteed, nor the separation of powers, has no Constitution " ;
5. Considering, second, that it is for the legislature to ensure conciliation between, on the one hand, the prevention of infringements of public order and the search for offenders, both of which are necessary for the protection of rights and Principles of constitutional value, and, on the other hand, the exercise of constitutionally guaranteed freedoms;
6. Considering that it follows from the whole of these provisions that if the legislator can provide for special investigative measures in order to establish specific crimes and offences of a particular gravity and complexity, to gather the evidence and To seek the authors thereof, it is subject to the restrictions which they bring to the constitutionally guaranteed rights necessary for the manifestation of truth, proportionate to the gravity and complexity of the offences committed And do not introduce unjustified discrimination;
7. Considering that by inserting in the Code of Criminal Procedure the Articles 64-1 and 116-1 of the Code of Criminal Procedure, the Law March 5, 2007, above has provided for the registration of the person kept in custody or being questioned in criminal matters; That, however, the contested provisions provide that the guarantees established by those two articles do not apply to investigations and instructions conducted for the crimes listed in Article 706-73 of the same code or those provided for and Reprimed by Titles I and II of Book IV of the Penal Code, unless the Public Prosecutor or the investigating judge orders the registration; that it is the result of the parliamentary proceedings of the Law of 5 March 2007, thus limiting the number Investigations or instructions subject to the obligation to register The examination of persons suspected of having committed a crime, the legislator has heard that this new procedural rule is reconciled with the particularities of investigations and instructions in the field of organised crime or infringement The fundamental interests of the Nation; and
8. Considering, first, that, on the one hand, the Articles 64-1 and 116-1 of the Code of Criminal Procedure provide that the prosecutor Of the Republic or the investigating judge may provide that hearings or interrogations shall not be recorded as a result of the " Number of people ... to be interviewed simultaneously " ; that the obligation to register does not apply in the event of technical impossibility mentioned in the minutes; that, on the other hand, these provisions permit the consultation of the recordings only on the decision of the investigating judge or The court of judgment, at the request of the public prosecutor or of one of the parties; furthermore, that the unauthorised disclosure of such recordings is criminally repressed; that, as a result, the impugned provisions are not justified in The difficulty in apprehend the perpetrators of offences acting in such a way The objective of preserving the secrecy of the investigation or investigation;
9. Considering, in the second place, that no constitutional requirement imposes the recording of hearings or interrogations of persons suspected of having committed a crime; that, however, by allowing such registrations, the legislator has To make possible, through the consultation of the latter, the verification of the words transcribed in the minutes of hearing or examination of persons suspected of having committed a crime; that, in the light of the objective, Continued, the difference in treatment instituted between persons Suspected of having committed one of the crimes covered by the impugned provisions and those that are heard or interrogated while they are suspected of having committed other crimes, result in unjustified discrimination; and Provisions ignore the principle of equality and must be declared unconstitutional;
10. Considering that under the second paragraph of Article 62 of the Constitution: A provision declared unconstitutional on the basis of Article 61-1 shall be repealed from the publication of the decision of the Constitutional Council or a later date fixed by that decision. The Constitutional Council shall determine the conditions and limits in which the effects of the disposition may be called into question." ; if, in principle, the declaration of unconstitutionality must benefit the author of the priority question of constitutionality and the provision declared contrary to the Constitution cannot be applied in the proceedings in progress on the date Of the publication of the decision of the Constitutional Council, the provisions of Article 62 of the Constitution reserve the power of the latter to fix the date of the repeal and carry forward its effects in time only to provide for the questioning The effect of the disposition before the intervention of that return;
11. Considering that the repeal of the paragraphs 64-1 and 116-1 of the Code of Criminal Procedure becomes effective Of the publication of this Decision; that it is applicable to the hearings of persons held in custody and to the interrogation of persons who have been examined, which are carried out as of that date,
Decides:
The declaration of unconstitutionality of Article 1 shall take effect from the publication of this Decision in accordance with the conditions laid down in recital 11.
This decision shall be published in the Official Journal of the French Republic and notified under the conditions set out in The order of 7 November 1958 referred to above.
Issued by the Constitutional Council at its meeting on 5 April 2012, attended by Mr Jean-Louis DEBRÉ, President, Mr Jacques BARROT, Mrs Claire BAZY MALAURIE, MM. Michel CHARASSE, Renaud DENOIX de SAINT MARC, Mme Jacqueline de GUILLENCHMIDT, MM. Hubert HAENEL and Pierre STEINMETZ.
The President,
Jean-Louis Debré
